What if the the Constitution Turns out to be a Suicide Pact? - A Final Post on Forced Labor and the Thirteenth Amendment:

At least for now, this will be my last post on forced labor. I think I have said all I reasonably can say about my arguments on this subject in the blog post format. However, I do want to address one more counterargument: the claim that my position that forced labor is unconstitutional might lead to the destruction of all our rights. For example, it is theoretically possible that, absent a draft, we might be conquered by an evil totalitarian enemy who will proceed to abolish the Constitution, violate all our rights, and so on. Even if this is impossible under current conditions, it was a more serious risk in the past (e.g. - during World War II), and may again be in the future. Thus, the critic will conclude, the government must have the power to impose a draft. Otherwise, there is at least some danger that the Constitution will be overthrown by our enemies and all our rights (including the Thirteenth Amendment itself) lost.

It is important to recognize that this type of "the Constitution is not a suicide pact" argument is hardly unique to the Thirteenth Amendment/forced labor context. It can be deployed against virtually any constitutional right. Thus, it is possible that a situation will arise where, unless the government is able to suppress Communist speech, the Communists (or some other totalitarian group) will win power in an election and then establish a totalitarian state that - you guessed it - will abolish the Constitution and take away all our rights. Sure it's unlikely today, but it was a more serious threat in the past (say, in the 1930s, when various extremist groups enjoyed considerable popularity because of the Great Depression), and the danger might again increase in the future. Indeed, the "suicide pact" formulation was originally deployed in a First Amendment case, Terminiello v. Chicago. Justice Jackson, the inventor of the phrase, was specifically concerned that "Invocation of constitutional liberties" under the First Amendment might be used by Nazis or Communists as "part of the strategy for overthrowing them."

A few years later, Jackson and other justices used similar reasoning to uphold the prosecution of Communist Party members in Dennis v. United States.

If we take the "suicide pact" argument to its logical conclusion, we will have to destroy all our constitutional rights in order to save them. Government would have to have the discretion to violate those rights at any time it sees fit, because otherwise there is always at least a small chance that the right in question would lead to national suicide.

I'm going to assume that this conclusion is unacceptable. But I also agree that it is unacceptable to conclude that a constitutional right can never be violated even if keeping it in place would lead to certain totalitarianism.

Therefore, we need to adopt one of two possible compromise options. The first is to admit that there are extreme situations where unconstitutional action is morally defensible even if still illegal. Adherence to the Constitution is an important value, but it is not the only value and it does not always trump all other considerations. However, we don't want to make it easy for government officials to violate constitutional rights. Thus, officials who take such actions should be forced to run the risk of being impeached or prosecuted for them. If they truly believe that the nation will fall to totalitarianism should they fail to act, they should be willing to risk those consequences (if only because prosecution in a liberal democratic state is a much less unpleasant fate than what will probably happen to those same officials should the totalitarians prevail).

The other alternative is to explicitly incorporate the "suicide pact" argument into our theory of constitutional interpretation. Maybe there is an "antisuicide" exception implicit in every constitutional right. If violating a constitutional right really is necessary for national survival, the government should have to make that case in court and meet a fairly high burden of proof in doing so. Mere assertion of the existence of a risk is not enough (otherwise constitutional rights would quickly be obliterated, since the state would make the assertion anytime officials find it convenient).

I'm not sure which of these two strategies is preferable. There is a substantial and in my view inconclusive academic literature on the subject. But whichever way we go, we should remember that the risk of totalitarian horror is not just on one side of the ledger. Just as protecting constitutional rights might create a risk of national sucide, so to might violating them. If, for example, we let the government impose forced labor, even in limited circumstances, there is a chance (perhaps initially quite small) that the forced labor program will be expanded into a totalitarian state. Ditto for violations of free speech and other rights. The Constitution may not be a suicide pact. But fear of suicide shouldn't blind us to the possibility that the same government that protects us from suicide might itself murder us.

I still don't see how some of the government-imposed duties that bother Ilya rise to the level of involuntary servitude, or why he is silent about other more egregious cases.

Indeed, he seems to be straining at gnats while swallowing camels.

For example, having to sit on a jury is a downright trivial inconvenience compared to other impositions he hasn't criticized.

Consider the courts' practice of jailing of people for not paying child support, which the courts have upheld against Thirteenth Amendment challenges (see, for example, the decision by Judge Kozinski, who sometimes describes himself as a "libertarian"), despite the general prohibition in the 13th Amendment case law against imprisonment even for nonpayment of voluntarily contracted commercial debts.

And then consider the additional fact that child support obligations are imposed even on people who have not voluntarily become parents, such as those ordered to pay child support for a child that is not biologically theirs, or is the product of statutory or actual rape.

The courts have made people pay child support, even when (a) the child results from the father being raped (either actual rape or statutory rape), or (b) even for a child that is not biologically the child of the purported father, but whose support is forced upon him through paternity fraud reinforced by legal doctrines like the legal presumption of paternity (in some states, the husband is still deemed the father of the child that results when his wife sleeps around with another man) or equitable estoppel (where the cuckolded husband erroneously believes the child is his, takes care of the child, and later is ordered to pay child support for that child when his unfaithful wife later gains custody of the child following a subsequent divorce).

Compare to being forced to pay 21 years of child support payments, having to sit on a jury is trivial.

For an example, an Alabama appeals court ordered a rape victim being to pay one-third of his net income in child support to his rapist, in S.F. v. State ex rel. T.M. (1996) (mother has sex with father while he was asleep, which neither the mother nor the court disputed had occurred or qualified as rape under state law).

If Ilya wants to be outraged by involuntary servitude, he should look into family law. There are plenty of examples in Virginia, in his own backyard, that he could look into, like the fact that Virginia courts enforce a Catch-22 policy of not allowing fathers to challenge excessive child support awards that they cannot afford to pay unless they first put up an (unaffordable) appeal bond for the full amount first before their appeal can even be heard. (See Mahoney v. Mahoney (Virginia Court of Appeals)).

Dave Briggman, himself a Virginia libertarian like Ilya, has experienced such abuses firsthand.

The absence of an army capable of protecting the country is a far greater threat to liberties than the absence of a law prohibiting certain kinds of speech.

Art. I, Sec. 8, clause 12, gives Congress the power "to raise and support armies." In times of national emergency, the power of conscription is essential "to raise and support armies." The Civil War, World War I, and World War II could not have been fought as they were relying merely on volunteers. The Thirteenth Amendment was passed by the 38th Congress in 1864 (Senate) and 1865 (House of Representatives). The same Congress supported conscription. Such an amendment could not have been passed if one-third of the states had successfully seceded from the Union and continued to insist on the maintenance of chattel slavery, and they would have done just that but for conscription in the North. Thus conscription contributed to the end of slavery and the passage of the Thirteenth Amendment. To convince me (or a court) that the amendment also abolished conscription (or was intended to), you must have a more much persuasive argument than merely claiming "well that's what it says." I don't for a moment think that's what it says.

A large portion of the draft during WWII was to serve as a scheduling device more than a method to demand service.

Absent a more or less independent scheduling device, there would have been a large surge of volunteers in June of each year (following High School graduations) and another in the late fall (following harvesting) - surges like this were inefficient in terms of providing basic training and also in providing replacement troops and levies for new units when needed.

The draft provided an alternative. It seems that there was little disagreement with National Service in the military at that time.

In effect, your argument is that the protection is that involuntary servitude is not unique among the rights that (if not surrendered in a crisis) might lead us to suicide. Despite the language of Terminello, Free Speech is not an appropriate analogy. Maybe some limitation on Free Speech in the 1930s might have helped protect against communism. But, since communism had a wide following in the 1930s, pro-communist speech was not often prosecuted. By the time of Terminello (1949), it was difficult to see enough of a following to support a communist revolution. Popular advocacy will not be prosecuted (however dangerous) and unpopular advocacy is not such a threat.

The First Amendment analogy that may fit is information (e.g. the sailing of troop ships in time of war) but that exception is well accepted (although we argue about its limits and application).

Consider the courts' practice of jailing of people for not paying child support, which the courts have upheld against Thirteenth Amendment challenges (see, for example, the decision by Judge Kozinski, who sometimes describes himself as a "libertarian"), despite the general prohibition in the 13th Amendment case law against imprisonment even for nonpayment of voluntarily contracted commercial debts.

Being forced to pay money is not the same thing as being forced to do labor. "Involuntary servitude" is not a synonym for "any distasteful legal obligation." It is a synonym for forced labor. As for the commercial debt cases, I think they were wrongly decided.

The absence of an army capable of protecting the country is a far greater threat to liberties than the absence of a law prohibiting certain kinds of speech.

That depends on whether the main threat to liberty is internal or external. Suppressing free speech might be much more important in the former scenario. It also implicitly assumes that absent a draft we can't raise an army capable of protecting the country (a very dubious claim).

conscription contributed to the end of slavery and the passage of the Thirteenth Amendment.

Actually, over 95% of Civil War Union soldiers were volunteers, adn the would almost certainly have been won even without conscription.

Free Speech is not an appropriate analogy. Maybe some limitation on Free Speech in the 1930s might have helped protect against communism. But, since communism had a wide following in the 1930s, pro-communist speech was not often prosecuted.

Actually, there were quite a few prosecutions of communist speech in the 1930s, several of which led to Supreme Court cases.

Popular advocacy will not be prosecuted (however dangerous) and unpopular advocacy is not such a threat.

This ignores the intermediate case of speech that is popular enough to pose a threat but not (yet) popular enough to command a political majority. That was roughly the status of communist and far right speech in the 30s, as well as in the 1920s Weimar Republic Germany. Such speech sometimes will be targeted for prosecution, as both communist and far right speech sometimes was in 1930s and early 40s America.

This post makes explicit what I find ridiculous about this whole discussion: it is being couched in the language of both extreme situations and radical interpretations. At least three things that aren't up for debate in reality are being treated as if they are up for debate:

For cripes sake, why don't we just become 16th amendment tax protesters. It's just as "plausible."

Once you begin taking extreme examples, you can get anywhere. Watch this:

Ok, so you can induce servitude --- say national service --- by making it an in-kind option in lieu of a legally-enacted tax. How about a tax of 100% of your income! Obviously, this is null and void. So therefore, it's "debatable" whether in-kind servitude options are constitutional. Hurrah!

No amount of textual analysis is going to render jury duty, public schools, conscription, or national civic service equatable with involuntary servitude.

The Thirteenth Amendment was passed by the 38th Congress in 1864 (Senate) and 1865 (House of Representatives). The same Congress supported conscription.

It's worth pointing that many of those in the 38th Congress who voted for the Amendment (which, let us recall, required a 2/3 majority) were northern Democrats who had opposed the Civil War era draft on both policy and constitutional grounds. Thus, it is wrong to say that that the majority that passed the Amendment was pro-conscription. It could not have passed without support from a substantial number of anti-conscription Democrats.

I don't support national service proposals in the U.S. because of the practical considerations, but your objections are simply ludicrous. Saying that a national service would be forced labor is like saying that taxes are theft. It's wrong, silly and, worse, it contributes nothing to the debate.

Libertarians and small government conservatives spend their time consigning themselves to the margins of civilized discourse (and politics) by getting on their high horse and making angry arguments from principles that matter only to them, when it would be so much more effective (as Becker-Posner wisely do) to simply point out the unwise practical consequences of solutions big government people advocate.

I don't support national service proposals in the U.S. because of the practical considerations, but your objections are simply ludicrous. Saying that a national service would be forced labor is like saying that taxes are theft. It's wrong, silly and, worse, it contributes nothing to the debate.

Libertarians and small government conservatives spend their time consigning themselves to the margins of civilized discourse (and politics) by getting on their high horse and making angry arguments from principles that matter only to them, when it would be so much more effective (as Becker-Posner wisely do) to simply point out the unwise practical consequences of solutions big government people advocate.

It's worth pointing that many of those in the 38th Congress who voted for the Amendment (which, let us recall, required a 2/3 majority) were northern Democrats who had opposed the Civil War era draft on both policy and constitutional grounds. Thus, it is wrong to say that that the majority that passed the Amendment was pro-conscription. It could not have passed without support from a substantial number of anti-conscription Democrats.

Do you have the actual vote count? The House at that time was 149-42 Republican and the Senate was 42-10. The 13th A passed on a vote of 119-56 in the House and 38-6 in the Senate. Doesn't look like they needed any significant number of Dems to pass it.

"Being forced to pay money is not the same thing as being forced to do labor."

Maybe that's true if you can pay the money.

But what if you are a person of modest means, and you can't pay the money? And get jailed as a result? How is being imprisoned any better than being forced to do labor? Would you rather be jailed for a year, or spend 3 days performing jury service (which Ilya finds objectionable?).

Moreover, nothing in the constitution stops the government from forcing a jailed person to do labor, so the situations I criticized can't be distinguished on that basis.

A lot of people are ordered to pay more money in child support after a divorce than they ever spent on their children during the marriage, leaving them broke. (Howard University Professor Steve Baskerville was ordered to pay 60 percent of his net income in child support, based on an unremarkable, mechanical application of Virginia's child support guidelines, which award uncapped daycare expenses on top of a standard amount based on income). Not surprisingly, they can't pay it, and they go to jail. (I think Baskerville survives only because he lives with his mom).

(The judge may jail a child support obligor who is unable to pay thinking this will encourage the jailed person's parents or relatives to come up with the money for them -- in essence, a ransom. This is known among some family court judges as "magic money," to quote Judge Rivers. Jail a deadbroke dad or mom, and magically, their next of kin sometimes (but not always) are able to come up with the money).

If you can't pay your support, you go to jail. You can't appeal the amount imposed, since if you can't afford to pay it, you can't afford the appeal bond either -- and putting up the appeal bond is, in a classic catch-22, required for an appeal. (See Mahoney v. Mahoney (Va. Ct. App.))

If you lose your job, tough luck. Your support payments will likely remain the same. As Virginia's child support web site said the last time I checked it a couple years ago, if you lose your job, and petition for an adjustment, your child support obligations may "increase," "decrease," or remain the same. Even if you have no income, they may "impute" it to you for purposes of child support, based on unrealistic assumptions about how much you can earn.

Only about 4 percent of jobless child support obligors manage to have their support payments cut substantially.

A lot of the others end up in jail, at taxpayer expense, when they are held in contempt for not paying what they cannot afford.

On the contrary, the inherent "suicide pact" clause is well established. It's called the strict scrutiny standard. I would expect a wartime draft and mandatory jury duty, and indeed any true constitution as suicide pact case to fall under that standard.

There is no reason that we must have all this hand wringing over the 'suicide pact' problem. If the situation arrises that requires massive conscripted service that is forbidden by the Constitution as presently written, then I'm certain that an amendment essential for survival could be passed in the same time that the military prepares to receive its first few million 'recruits'.
If it were the accepted ruling on Dec 7, 1941, don't you think that a draft amendment would have been passed before the week was out?

Failing to respect the Constitutional rights of Americans is suicide for legitimate government. If we become the enemy in order to defeat the enemy, then we have won nothing; we have destroyed ourselves.

We may argue about the numbers of conscripts and volunteers. Many men volunteered so they would not be conscripted, as a stigma was attached (for understandable reasons) to men who had to be forced to fight for their country. It is not arguable, however, that Congress enacted both conscription and the Thirteenth Amendment at nearly the same time. To conclude that members of Congress intended or understood (take your pick) that the amendment would make conscription unconstitutional is is to accuse them of taking absurdly inconsistent positions at a time when the very existence of the nation was at stake.

The discussion of forced labor has been interesting, but I'm curious about the enduring influence of the "Constitution is not a suicide pact" meme. This was a line in a dissent; in the case at bar, it seems the majority was correct (at least to the extent that the decision on the merits wouldn't be controversial today).

I mean, it's an interesting topic to think about, but it's not as if it's an established rule of law that the Constitution isn't a suicide pact.

Saying that a national service would be forced labor is like saying that taxes are theft.

Oh really? A tax rate of 100% is clearly theft. So there is definitely a point between 1% and 100% for each person where they decide that the government taking money from them ceases to be "taxation" and becomes "theft". Because some people set this number much lower than you do does not mean they are wrong, or even "silly". Just because something has become accepted or everyday does not mean it is right.

Libertarians and small government conservatives spend their time consigning themselves to the margins of civilized discourse (and politics) by getting on their high horse and making angry arguments from principles that matter only to them, when it would be so much more effective (as Becker-Posner wisely do) to simply point out the unwise practical consequences of solutions big government people advocate.

Well the thing is that a lot of the "principles that matter only to them" would matter to everyone else if everyone else understood them. That's part of pointing out the "unwise practical consequences of solutions big government people advocate." Taxes hamper the private economy, above a certain point making it weaker. So taxes are not just theft from the individual, they are theft from everyone - society as a whole.

Reading these posts and comments has made me wonder - Did anyone bother to look up the meaning of the word "servitude"? Did you just assume that it meant the same thing as "service," or "labor" or "work"?

Many men volunteered so they would not be conscripted, as a stigma was attached (for understandable reasons) to men who had to be forced to fight for their country.

Of course you are referring to the earlier wars, things were different during the Vietnam conflict. Things are different when the country is involved in a war or conflict that many, perhaps a majority, deem a "war of choice" or illegal, unnecessary, wasteful, counterproductive, immoral, etc.

Just to correct my earlier post, the official Congressional site gives different figures for the party division in the House during the 38th Congress. According to it, there were 86 Republicans, 72 Democrats, and a scattering of other parties (total = 27). The vote on the 13th A, best I can reconstruct from various sites, had all Republicans and 23 of the 27 "others" voting yes. That meant 10 Democrats voted for the 13th A, 56 voted no, and 6 (or some say 8) Dems abstained. That doesn't lend much support to the theory that Dems who opposed the draft should somehow be accorded preference in interpreting the language of the Amendment.*

Of interest, on Jan. 30, 1865, the House passed an amendment to the draft law. It passed the 13th A the very next day.

*I've assumed for the sake of argument that all Dems opposed the draft. That may not be true.

Many men volunteered so they would not be conscripted, as a stigma was attached (for understandable reasons) to men who had to be forced to fight for their country.

There was another factor as well. What happened, in effect, is that the North didn't rely on the draft as much as the South because the North was able to use black troops. Those troops -- the use of which would have been inconceivable before the war -- mostly solved the manpower shortage which necessitated the draft.

"The Constitution is not a suicide pact" is nonsense. That is like saying that my LLP is not a suicide pact. So what is the price of tea in CHina?

The Constitution is a compact among States and not a contract between the people and the government; there was no Federal government to enter a compact with.

A given member State, representing her citizens, in the compact, when it "shall seem most likely to effect their Safety and Happiness" can withdraw. The issue is the life of a member State. The agent's survival, the Central government, is inferior to a State's.

The Civil War, World War I, and World War II could not have been fought as they were relying merely on volunteers.

Let me point out that at the time the Constitution was written, the vast majority of white male citizens were obligated to militia duty. It wasn't a draft, but it was a legal obligation, and you could be fined for failure to serve, and for failure to show up with a gun.

Communal obligations are not the same as slavery. I'm not a fan of the draft, but the notion that it qualifies as forced labor prohibited by the 13th Amendment is silly.

i think the second option you propose (anti suicide pact is built in) is the one the supreme court generally deals with..

balencing tests for habeus corpus rights and other stuff generally tries to force the gov to give lots of proof that doing something would be suidcide in ordeer to let them violate the contituion (like the test employed to allow perjury statutes or allowing 'exigent cericumstances' variables)

Really, what is forced labor, if not, ahem, forcing people to work against their will?

And what is theft if not, ahem, taking people's money against their will?

But taking your point, what if it is forced labor? Maybe forced labor is a good thing, or at least a necessarily evil. I can think of instances where government-mandated forced labor is a good thing, like if it's a substitution for a prison sentence. (I'm not writing in favor of forced labor, I'm just playing devil's advocate to make a point.)

If you say a national service is like forced labor and you stop there, you haven't proven anything. You've just waved a red herring.

I know this is a bit off the main topic of the post, but it seems a bit disingenuous to claim that a requirement to pay money is not forced labor, when the amount is 1) ongoing 2) based on the amount you make, unless you refuse to go to work and make the most you reasonably can. If you take a job that pays less than you can make, income will be imputed to you with the specific intent of forcing you to go work

Did anyone bother to look up the meaning of the word "servitude"? Did you just assume that it meant the same thing as "service," or "labor" or "work"?

I was wondering the same thing. My understanding, confirmed somewhat by my handy dictionary, has been that "servitude" derives from the same "serfdom" roots as it does in property law, and refers to labor under private ownership or bondage to a private obligee. I recall being taught, long ago, that the "punishment for crime" exception derived from the fact that criminals were commonly sentenced to labor on private lands, including the homes or farms of their victims, or of people who paid the state, county or municipality for their services. If that's the case, one can see why the courts would give short shrift to an argument that the draft or jury duty was involuntary servitude. To someone who understood the word to have that meaning, the argument would seem silly.

Ironically, I learned these things in a constitution class that state law required me to take in the eighth grade - one taught by the best teacher I ever had, bar none. I've now been practicing constitutional law for more than two decades, and find that eighth grade class was a much more useful learning experience than the classes in constitutional law I later took in law school.

"If violating a constitutional right really is necessary for national survival," why would the nation deserve to survive? Doesn't the nation exist to ensure the protection of those rights? If the security of individual rights conflicts with national security, national security ought to lose out.

Well the thing is that a lot of the "principles that matter only to them" [libertarians] would matter to everyone else if everyone else understood them.

This is the attitude that has rendered libertarianism a philosophy for, at most, one person out of a thousand: namely, the fervent belief that people who disagree with libertarians are, necessarily, ignorant or stupid.

And what is theft if not, ahem, taking people's money against their will?

Well, ahem, one could argue that theft is illegally taking people's money against their will, which is why enforcing a money judgment against a civil defendant is not theft. (Or perhaps taxation is theft. What of it?) Forced labor, on the other hand, carries no such legal restriction; forced labor is labor which is forced.

But taking your point, what if it is forced labor? Maybe forced labor is a good thing, or at least a necessarily evil.

Slavery is pretty much neither a good thing nor a necessary evil.

This is the attitude that has rendered libertarianism a philosophy for, at most, one person out of a thousand: namely, the fervent belief that people who disagree with libertarians are, necessarily, ignorant or stupid.

Clearly false, since vast numbers of people across the political spectrum believe that about those who disagree with them.

Libertarianism isn't a more popular philosophy because many people don't prize freedom. They want security, even if they have to sacrifice liberty -- and especially if they get to sacrifice someone else's liberty.

"If violating a constitutional right really is necessary for national survival," why would the nation deserve to survive? Doesn't the nation exist to ensure the protection of those rights? If the security of individual rights conflicts with national security, national security ought to lose out.

Rights can be restored if the nation survives, but will be lost forever if the nation does not survive.

byomtov,
You say "utter nonsense" without identifying whether you think the statutory child support scheme is utter nonsense, or whether you think I'm incorrectly summarizing the law (I will admit it was a thumbnail sketch, but it was basically accurate).